The opinion
Filed 10/18/22 Certified for Partial Pub. 11/4/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
GARY R. WISNER, C094051
Plaintiff and Appellant, (Super. Ct. No.
STK-CV-UD-2020-0003078)
v.
DIGNITY HEALTH et al.,
Defendants and Respondents.
This appeal is from an order striking a complaint under Code of Civil Procedure
section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute.1
Plaintiff Gary R. Wisner, M.D., who is representing himself, filed a complaint alleging
that defendants Dignity Health and the Dignity Health St. Joseph’s Medical Center
(collectively, SJMC) falsely reported to the National Practitioner Data Bank (NPDB) that
Wisner surrendered his clinical privileges while under investigation.2 The trial court
1 Undesignated statutory references are to the Code of Civil Procedure unless
otherwise noted.
2 After this matter was fully briefed, we granted the unopposed motion of Wisner’s
counsel to withdraw as attorneys of record. Consequently, plaintiff is now proceeding in
propria persona.
1
granted a special motion to strike the complaint after concluding that Wisner’s claims
arose from a protected activity and that Wisner failed to establish a probability of
prevailing on the merits. Wisner contests both aspects of the trial court’s order, and he
also contends the court erred by denying his motion to conduct limited discovery prior to
the hearing on the anti-SLAPP motion. Finding no error, we affirm.
BACKGROUND FACTS AND PROCEDURE
Wisner is an orthopedic surgeon who has been practicing since 1988. He holds
medical licenses in five states and is certified by the American Board of Orthopedic
Surgery. From 1990 through March 2019, Wisner held “courtesy” staff privileges at
SJMC, an acute care hospital in Stockton, California. As a courtesy staff member,
Wisner could admit up to 10 patients per year at SJMC.
In May 2018, Wisner was charged in a criminal indictment with 11 felony counts
of making false or fraudulent insurance claims (Pen. Code, § 550, subd. (a)) related to
patient care services. In July 2018, the Medical Board of California (“Medical Board”)
issued an accusation against Wisner seeking to revoke or suspend his license to practice
medicine in California for gross negligence and repeated negligent acts in his care and
treatment of multiple patients.
In January 2019, Wisner asked to be placed on SJMC’s emergency department
“on call panel.” At the time, Wisner had not treated any patients at SJMC for
approximately two decades.
In response to Wisner’s request to join SJMC’s on call panel, Don Wiley, SJMC’s
chief executive officer, conferred with Alvin Cacho, M.D. (Cacho), then chief of staff.
Given the length of time since Wisner had last treated patients at SJMC, and the pending
accusation and criminal indictment, they concluded that there was a need to “develop
additional information” to evaluate Wisner’s request. Cacho “began an investigation.”
Thereafter, in a series of e-mails and letters, Cacho asked Wisner to provide SJMC
with additional information about the accusation and indictment, including a complete
2
copy of any materials that Wisner was “entitled” to obtain from the Medical Board
through prehearing discovery (e.g., the Medical Board’s investigative report). Cacho
explained that SJMC had a responsibility to assess the validity and peer review
implications of the charges against Wisner based on an independent review of the
relevant evidence. Cacho informed Wisner that compliance was mandatory and that his
failure to comply may result in suspension of his clinical privileges. Cacho also told
Wisner that after receiving the requested materials, SJMC would determine the
implications for Wisner’s staff membership and clinical privileges.
Wisner responded that he could not satisfy SJMC’s demand to provide more
information because he had no additional information to provide. Instead, by e-mail
dated March 4, 2019, Wisner “resign[ed] all privileges” at SJMC. In his resignation e-
mail, Wisner explained: “I am clearly not under any investigation at [SJMC] . . . since
you pointed out repeatedly that you do not even know my activities as a surgeon these
last 30 years. I have always had an excellent relationship with all hospitals including
[SJMC], and I still remain a member in good standing at all hospitals including your own.
To avoid further costly litigation to assert my legal rights both to remain on your medical
staff and to protect my excellent medical staff privileges, I would like to completely
resign all privileges at [SJMC] at this time.”
On March 15, 2019, SJMC filed a report with the NPDB disclosing that Wisner
had surrendered his clinical privileges while under investigation. SJMC also reported the
resignation to the Medical Board, as required by Business and Professions Code section
805.
In March 2020, Wisner asked the Secretary of the U.S. Department of Health and
Human Services (DHHS) to review the accuracy of the NPDB report. Wisner asserted
that the NPDB report was false because he was not under investigation.
Wisner also separately filed a complaint against SJMC, accusing the hospital of
falsely reporting to the NPDB that Wisner had resigned while under investigation “out of
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spite and with a retaliatory motive” because of Wisner’s repeated requests to be placed on
the emergency department on call panel. The complaint alleged claims against SJMC for
fraud, libel/defamation, intentional interference with his right to pursue a lawful
profession, negligent and intentional interference with prospective economic advantage,
unlawful business practices, and intentional infliction of emotional distress.
In June 2020, while the complaint was pending, the Secretary of the DHHS issued
a decision rejecting Wisner’s challenge to the NPDB report. The Secretary determined
that Wisner had surrendered his clinical privileges “while under investigation or to avoid
an investigation in a matter which could have led to a reportable professional review
action had the investigation been completed.” The Secretary found “no basis to conclude
that the report should not have been filed or that [the report was] not accurate, complete,
timely or relevant.”
That same month, SJMC filed a special motion to strike the complaint pursuant to
section 425.16 (the anti-SLAPP motion). SJMC argued that the complaint was subject to
the anti-SLAPP statute because it arose from protected activity under section 425.16,
subdivision (e)(1), (2), and (4), namely, the filing of the NPDB report.
Wisner opposed the anti-SLAPP motion, arguing that the filing of the NPDB
report was not protected activity and that he had, in any event, shown a probability of
prevailing on the merits. Wisner also filed a motion under section 425.16, subdivision
(g) for an order allowing limited discovery to oppose the anti-SLAPP motion (the
discovery motion). Wisner sought evidence to prove that the NPDB report was false and
that SJMC officials knew it was false and acted with malice in filing the report.
The court denied Wisner’s discovery motion, finding that he failed to demonstrate
good cause for the requested discovery. The court reached this conclusion for two
reasons. First, the proposed discovery did not define the term “investigation,” and
therefore was vague and ambiguous. Second, under any definition of investigation, the
“evidence already in [Wisner’s] possession” clearly demonstrated that Wisner was under
4
investigation and therefore the proposed discovery was unnecessary as it would not
change the outcome.
The court granted SJMC’s anti-SLAPP motion. The court concluded that SJMC
carried its burden of demonstrating that Wisner’s complaint arose out of protected
activity, namely, the filing of the NPDB report. Wisner, in contrast, failed to carry his
burden of showing a probability of success on the merits. The court specifically noted
that “[a]ll of the evidence before the court supports [SJMC’s] contention that the [NPDB]
report was true when made—a contention that has been endorsed by [the DHHS].” Thus,
SJMC was statutorily immune from liability under section 11137 of the federal Health
Care Quality Improvement Act of 1986 (HCQIA). (42 U.S.C. § 11101 et seq.)
Wisner timely appealed the orders granting the anti-SLAPP motion and denying
the discovery motion. (§§904.1, subd. (a)(13), 906, 425.16, subd. (i).)
DISCUSSION
I
Order Granting Anti-SLAPP Motion
Wisner contends that the trial court erred in granting SJMC’s anti-SLAPP motion
to strike the complaint because (1) not all of Wisner’s claims arose from protected
activity to which section 425.16 applies; and (2) the court improperly weighed the
evidence and made inferences in favor of SJMC in determining that Wisner failed to
demonstrate a probability of success on the merits. We conclude that the first contention
was forfeited and that the second contention lacks merit. We explain below.
A. California’s anti-SLAPP statute
Enacted in 1992, California’s anti-SLAPP statute is designed to deter “lawsuits
brought primarily to chill the valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances.” (§ 425.16, subd. (a); Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871, 883-884.) To that end, the statute provides a
special motion procedure for “weeding out, at an early stage, meritless claims arising
5
from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral); Wilson,
supra, at p. 884.)
Resolution of an anti-SLAPP motion involves a two-step procedure. (Baral,
supra, 1 Cal.5th at p. 384.) At the first step, the moving defendant bears the burden of
establishing that the challenged claim “arises from activity protected by section 425.16.”
(Baral, at p. 384; § 425.16, subd. (b)(1).) At this step, “courts are to ‘consider the
elements of the challenged claim and what actions by the defendant supply those
elements and consequently form the basis for liability.’ [Citation.] The defendant’s
burden is to identify what acts each challenged claim rests on and to show how those acts
are protected under a statutorily defined category of protected activity.” (Bonni v. St.
Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni); see also City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 78 [“arising from” means the claim was “based on” an
act in furtherance of the right of petition or free speech].) A moving defendant can meet
its burden by demonstrating that the plaintiff’s claim arises from one of four categories of
protected activity listed in section 425.16, subdivision (e). (City of Cotati, supra, at p.
78.)
If the defendant makes the required showing, the burden then shifts to the plaintiff
to demonstrate a probability of success on the challenged claims. (Baral, supra, 1
Cal.5th at p. 384.) The plaintiff’s burden is not high; the plaintiff need only establish that
the claims have “ ‘minimal merit.’ ” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061; Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
However, the plaintiff cannot meet this burden by relying on the allegations of the
complaint. The plaintiff must submit admissible evidence. (Litinsky v. Kaplan (2019) 40
Cal.App.5th 970, 980.)
During the second step of the anti-SLAPP analysis, the court evaluates the merits
of the plaintiff’s claims using a “ ‘summary-judgment-like procedure.’ ” (Baral, supra, 1
Cal.5th at p. 384.) “The court does not weigh evidence or resolve conflicting factual
6
claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim
and made a prima facie factual showing sufficient to sustain a favorable judgment. [The
court] accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only
to determine if it defeats the plaintiff’s claim as a matter of law.” (Id. at pp. 384-385.)
The court must determine whether the plaintiff has presented evidence that, if accepted
by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim
is stricken. (Id. at p. 396.) A defendant, in turn, may defeat a claim by showing that the
plaintiff cannot establish an element of the claim or that there is a complete defense to it.
(Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133
Cal.App.4th 658, 676; Rohde v. Wolf (2007) 154 Cal.App.4th 28, 38; see also Premier
Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136
Cal.App.4th 464, 478, 480 [reversing order denying anti-SLAPP motion where plaintiffs
failed to address immunity defense].)
We review an order granting an anti-SLAPP motion de novo, using the same two-
step approach as the trial court. (Alpha & Omega Development, LP v. Whillock
Contracting, Inc. (2011) 200 Cal.App.4th 656, 663.) In undertaking our review, we are
guided by the legislative directive that section 425.16 be construed broadly to encourage
continued participation in speech and petitioning activities. (§ 425.16, subd. (a);
Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15,
22; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119-1120.)
B. First prong: protected activity
In moving to strike Wisner’s complaint under section 425.16, SJMC had the initial
burden of demonstrating that each claim alleged in the complaint arose from protected
activity. (Bonni, supra, 11 Cal.5th at p. 1009.) To meet this burden, SJMC argued that
all of Wisner’s causes of action arose from the filing of the NPDB report, a protected
activity under section 425.16, subdivision (e)(1), (2), and (4) of the anti-SLAPP law.
7
On appeal, Wisner concedes that filing an NPDB report is a protected activity
under the Supreme Court’s decision in Bonni, supra, 11 Cal.5th at page 1017. However,
Wisner disputes that all his claims arose from that protected activity. Wisner argues that
the third through seventh causes of action also alleged, as a basis for liability, (1) SJMC’s
refusal to place him on the emergency department on call panel; (2) the demand that he
exercise prehearing discovery rights in the Medical Board administrative proceeding; and
(3) the demand that he disclose discovery information relating to the Medical Board
accusation. Wisner argues that these claims are unrelated to the filing of the NPDB
report, and therefore SJMC failed to meet its burden to show the claims arose from
protected activity.
SJMC responds that Wisner forfeited this contention by failing to raise it below.
We agree.
In his opposition to the anti-SLAPP motion, Wisner argued that filing an NPDB
report is not a protected activity, but Wisner never challenged SJMC’s assertion that all
his claims arose from the filing of the NPDB report. In other words, Wisner never argued
that any of his causes of action were based on other, unprotected activity, raising that
argument instead for the first time on appeal. Hence, this argument was not developed
before, nor considered or ruled upon by, the trial court.
Generally, issues not raised in the trial court cannot be raised for the first time on
appeal. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603; Premier Medical
Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th
550, 564.) Although appellate courts have discretion to consider an issue in the first
instance if it raises a question of law on undisputed facts, our Supreme Court has
cautioned that such discretion should be exercised rarely and only in cases presenting an
important legal issue. (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on
unrelated grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962; In re Sheena
K. (2007) 40 Cal.4th 875, 887, fn. 7; see Souza v. Westlands Water Dist. (2006) 135
8
Cal.App.4th 879, 898-899 [there is no rule that an appellate court must consider a pure
question of law raised for the first time on appeal]; Saville v. Sierra College (2005) 133
Cal.App.4th 857, 872-873 [it would be manifestly unjust to the opposing parties, unfair to
the trial court, and contrary to judicial economy to permit a change of theory on appeal].)
“ ‘ “Appellate courts are loath to reverse a judgment on grounds that the opposing party
did not have an opportunity to argue and the trial court did not have an opportunity to
consider. [Citation.]” ’ ” (Premier Medical Management Systems, supra, at p. 564,
citing JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115
Cal.App.4th 168, 178.)
Wisner fails to respond to SJMC’s forfeiture argument in his reply brief on appeal,
tacitly conceding its merit. Because we find that the circumstances of this case do not
support an exception to the forfeiture rule, we decline to consider Wisner’s argument that
some of his claims arose from unprotected activity.
C. Second prong: probability of success on the merits
Because SJMC met its initial burden of showing that Wisner’s causes of action
arose from the protected activity of filing the NPDB report, the burden shifted to Wisner
to demonstrate a probability of prevailing on the merits by showing that his claims have
“ ‘at least “minimal merit.” ’ ” (Bonni, supra, 11 Cal.5th at p. 1009.) Here, SJMC
argued, and the trial court agreed, that Wisner could not meet that burden because the
evidence shows defendants are immune from liability under the HCQIA. We agree.
We begin with the language of the relevant statute and regulations, which mandate
a health care entity to file an NPDB report whenever a physician surrenders clinical
privileges while “under investigation.” (42 U.S.C. § 11133(a); 45 C.F.R. §§ 60.2, 60.3,
60.4, 60.12(a)(ii)(A); U.S. Dept. of Health and Human Services, NPDB Guidebook, at E-
9
31, E-32, E-36, E-43 (2018) (the NPDB Guidebook).)3 Information reported to the
NPDB is accessible to state licensing boards and certain health care entities. (42 U.S.C.
§ 11137(a); 45 C.F.R. §§ 60.17, 60.18.)
The HCQIA provides immunity for any person or entity who makes a report to the
NPDB, except when the report was knowingly false. (42 U.S.C. § 11137(c).) “Thus,
immunity for reporting exists as a matter of law unless there is sufficient evidence for a
jury to conclude the report was false and the reporting party knew it was false.” (Brown
v. Presbyterian Healthcare Services (10th Cir. 1996) 101 F.3d 1324, 1334; see also
Bryan v. James E. Holmes Regional Medical Ctr. (11th Cir. 1994) 33 F.3d 1318, 1332
[HCQIA immunity is a question of law for the court to decide whenever the record is
sufficiently developed].)
At issue here is the meaning of the term “investigation” for the purpose of the
mandatory reporting requirements. Wisner argues that this is an issue that should be
resolved by a jury, but a “reportable event is based on an ‘investigation’ as that term is
contemplated by the statute . . . .” (Doe v. Rogers (D.D.C. 2015) 139 F.Supp.3d 120, 142
(Rogers).) The proper interpretation of that statutory term presents a question of law for
a court to resolve, not a question for a jury. (Family Health Centers of San Diego v. State
Dept. of Health Care Services (2021) 71 Cal.App.5th 88, 97.)
Under settled canons of statutory construction, in construing a statute we ascertain
the legislative intent to effectuate the law’s purpose. (Green v. State of California (2007)
42 Cal.4th 254, 260; RCJ Medical Services, Inc. v. Bonta (2001) 91 Cal.App.4th 986,
1006-1007.) We look first to the statutory language, giving it a plain and commonsense
meaning, construed in the context of the overall statutory scheme. (Green, supra, at p.
3 We grant Wisner’s request for judicial notice of the NPDB Guidebook, which is
available at <https://www.npdb.hrsa.gov/resources/NPDBGuidebook.pdf> [as of Oct. 17,
2022], archived at <https://perma.cc/8BK8-G86P>.
10
260; RCJ Medical Services, supra, at p. 1006.) Where the words used are sufficient in
and of themselves to determine the purpose of the legislation, we follow the plain
meaning. (People v. Murtha (1993) 14 Cal.App.4th 1112, 1119-1120.)
Neither the statute nor the implementing regulations define the term
“investigation” for the purpose of the mandatory reporting requirements. (Rogers, supra,
139 F.Supp.3d at p. 133.) However, the Secretary of the DHHS, which administers the
HCQIA, has provided guidance in the NPDB Guidebook. (Rogers, at pp. 133-134, fn.
10; Costa v. Leavitt (D. Neb. 2006) 442 F.Supp.2d 754, 769-770.) The NPDB
Guidebook is an agency “policy manual” created by the DHHS to “inform the U.S. health
care community and others about the [NPDB] and the requirements established by the
laws governing the NPDB . . . .” (Costa v. Leavitt, supra, at p. 769; 42 U.S.C. § 11114.)
With respect to investigations, the NPDB Guidebook provides: “[The] NPDB interprets
the word ‘investigation’ expansively. . . . The NPDB considers an investigation to run
from the start of an inquiry until a final decision on a clinical privileges action is reached.
In other words, an investigation is not limited to a health care entity’s gathering of facts
or limited to the manner in which the term ‘investigation’ is defined in a hospital’s
bylaws. An investigation begins as soon as the health care entity begins an inquiry and
does not end until the health care entity’s decision-making authority takes a final action
or makes a decision to not further pursue the matter.” (NPDB Guidebook, at E-36-E-37.)
“A routine review of a particular practitioner is not an investigation.” “However,
if a formal, targeted process is used when issues related to a specific practitioner’s
professional competence or conduct are identified, this is considered an investigation for
the purposes of reporting to the NPDB.
“A health care entity that submits a clinical privileges action based on surrender,
restriction of, or failure to renew a physician’s or dentist’s privileges while under
investigation should have evidence of an ongoing investigation at the time of
surrender . . . . Examples of acceptable evidence may include minutes or excerpts from
11
committee meetings, orders from hospital officials directing an investigation, or notices
to practitioners of an investigation (although there is no requirement that the health care
practitioner be notified or be aware of the investigation).” (NPDB Guidebook, at E-37.)
The NPDB Guidebook is not the product of formal rulemaking, and therefore is
not entitled to the high level of deference outlined in Chevron, U.S.A., Inc. v. NRDC, Inc.
(1984) 467 U.S. 837, 843-845 [81 L.Ed.2d 694, 703-705] [quasi-legislative regulations
are given controlling weight unless they are arbitrary, capricious, or manifestly contrary
to the statute]. Nevertheless, we are persuaded that the NPDB Guidebook is entitled to a
high level of deference under Skidmore v. Swift & Co. (1944) 323 U.S. 134, 140 [89
L.Ed. 124, 129] due to the agency’s expertise and technical knowledge, its careful and
studied consideration of the issue in a comprehensive manual of general applicability, the
value of a uniform understanding of what a national law requires, and the validity of the
agency’s reasoning in light of the purpose of the reporting requirement. (Doe v. Leavitt
(1st Cir. 2009) 552 F.3d 75, 79-86; see also United States v. Mead Corp. (2001) 533 U.S.
218, 227, 234 [150 L.Ed.2d 292, 304, 308]; Yamaha Corp. of America v. State Bd. of
Equalization (1998) 19 Cal.4th 1, 7-8, 11-15.)
We find the NPDB Guidebook’s interpretation sensible and persuasive given the
purpose of the NPDB, which is to improve health care quality, protect the public, and
reduce health care fraud and abuse. An expansive interpretation of what constitutes an
investigation is necessary to prevent incompetent and unprofessional physicians from
eluding the reach of the mandatory reporting requirement by resigning early in the
process, before an inquiry can blossom into a formal peer review proceeding.
We agree with the NPDB Guidebook that the definition of an investigation cannot
be controlled by a hospital’s bylaws, policies, or procedures. “To hold otherwise would
result in ad hoc reporting and reporting inconsistencies across the multitude of health care
entities throughout the nation,” frustrating the purpose of the reporting requirement.
(Rogers, supra, 139 F.Supp.3d at p. 142; Doe v. Leavitt, supra, 552 F.3d at pp. 82-85.)
12
We note that the NPDB Guidebook’s interpretation also is consistent with the
ordinary definition of an investigation as an inquiry or examination of a person or thing.
(Oxford English Dict. Online (2022) <https://www.oed.com/view/Entry/99038?
redirectedFrom=investigation#eid> [as of Oct. 17, 2022], archived at
<https://perma.cc/2PZ9-RLF3>.)
Thus, consistent with the Secretary’s interpretation, we conclude that for the
purpose of the mandatory reporting requirements, an “investigation” commences as soon
as there is a focused “inquiry” into potential misconduct.
Applying this definition, we have little difficulty concluding that the evidence
presented established that Wisner was “under investigation” at the time of his resignation.
First, both SJMC’s chief executive officer and its chief of staff submitted declarations
stating that the hospital commenced an investigation into the Medical Board accusation
and criminal indictment after Wisner requested to be placed on the emergency
department on call panel. The purpose of the inquiry was to investigate the serious
allegations of professional misconduct contained in the accusation and criminal
indictment.
Second, SJMC requested information from Wisner about the accusation and
criminal indictment, and told Wisner that a decision about his staff membership and
clinical privileges would be made after that information was received and reviewed.
SJMC also explained to Wisner that his compliance was mandatory and that failure to
comply may result in suspension of his privileges.
Third, after Wisner disputed the accuracy of the NPDB report, the Secretary of the
DHHS specifically determined, based on largely the same evidence as was presented to
the court, that Wisner surrendered his clinical privileges “while under investigation or to
avoid an investigation . . . .” Wisner did not seek judicial review of that determination.
Wisner argues that under the hospital’s bylaws, an “investigation” must be
initiated by the hospital’s executive committee. Wisner is incorrect. The hospital’s
13
bylaws define an investigation as a process ordered by the executive committee, “or by
the Chief of Staff on its behalf,” to determine the validity of a concern or complaint
raised against a practitioner. The bylaws specifically provide, at section 8.1.D, that “[t]he
Chief of Staff may act on behalf of the [executive committee] to initiate an
Investigation,” subject to subsequent review and approval by the committee.4 In any
event, as discussed, the bylaws do not control the meaning of an “investigation” for
purposes of the NPDB reporting requirements and associated immunity.
We likewise reject the contention that the NPDB Guidebook requires minutes of
committee meetings, orders from hospital officials, or similar evidence to support the
existence of an investigation. There must be “evidence that an investigation was initiated
prior to the surrender of clinical privileges,” but the NPDB Guidebook does not require
any particular type of evidence. (Rogers, supra, 139 F.Supp.3d at p. 139.) Here, the
evidence produced by SJMC was sufficient to show that an investigation was initiated
prior to Wisner’s surrender of clinical privileges.
Wisner accuses the trial court of improperly weighing the evidence and failing to
indulge inferences in his favor. But the only admissible evidence showed that Wisner
was under investigation. Wisner presented nothing to contradict this. (Litinsky v.
Kaplan, supra, 40 Cal.App.5th at p. 983 [trial court not required to disregard defendant’s
evidence where no conflict existed].) Wisner’s self-serving opinion that he did not
believe he was under investigation was not sufficient for a jury to find the NPDB report
was false. (Industrial Waste & Debris Box Service, Inc. v. Murphy (2016) 4 Cal.App.5th
1135, 1159 [mere assertion that a statement is false does not satisfy plaintiff’s burden to
demonstrate its falsity].) It was not necessary for Wisner to have been aware of the
investigation. (Rogers, supra, 139 F.Supp.3d at p. 147.)
4 SJMC submitted evidence indicating that the executive committee was consulted
and approved the investigation.
14
Viewing the facts in the light most favorable to Wisner, we are persuaded there
was not sufficient evidence for a reasonable jury to conclude the NPDB report was false.
Therefore, the trial court did not err in concluding that SJMC was entitled to immunity,
defeating Wisner’s claims as a matter of law.
II
Order Denying Discovery
Wisner also argues the judgment should be reversed because the trial court abused
its discretion by denying his discovery motion. We find no abuse of discretion.
A. Background law
As a rule, when an anti-SLAPP motion is filed under section 425.16, all discovery
in the action is stayed until the motion is decided. (§ 425.16, subd. (g).) The discovery
stay “reflect[s] the statutory purpose to prevent and deter SLAPP suits by ending them
early and without great cost to the SLAPP target.” (Britts v. Superior Court (2006) 145
Cal.App.4th 1112, 1124; accord, Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 65.) Although the anti-SLAPP statute permits specified discovery on noticed
motion “for good cause shown,” the exception is construed narrowly. (§ 425.16, subd.
(g); Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1350-1351.)
A plaintiff requesting discovery under the anti-SLAPP statute should include some
explanation of “ ‘what additional facts [plaintiff] expects to uncover,’ ” and why such
discovery is necessary. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568,
593 (1-800 Contacts); Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226,
247.) Factors that courts may consider in deciding whether to grant a motion for limited
discovery include: (1) whether the discovery is needed to establish the plaintiff’s prima
facie case and tailored to that end; (2) whether the information plaintiff seeks to obtain
through discovery is readily available from other sources or can be obtained through
informal discovery; (3) the plaintiff’s need for discovery in the context of the issues
raised in the anti-SLAPP motion; and (4) the importance of staying discovery as
15
protection for the defendant’s valid exercise of the right of petition or free speech. (The
Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1162-1163;
Britts v. Superior Court, supra, 145 Cal.App.4th at p. 1125; Abir Cohen Treyzon Salo,
LLP v. Lahiji (2019) 40 Cal.App.5th 882, 891; § 425.16, subd. (a).) A motion for
discovery may be denied where the only justification for it is a stated desire to test the
opponent’s declarations. (1-800 Contacts, supra, at p. 593; Sipple, supra, at p. 247.)
B. Analysis
In his motion for discovery, Wisner sought to discover a broad range of
information related to the issue of whether he was under investigation, including who
made the decision to commence an investigation, when the decision was made, the scope
of the investigation, and any documents that refer or relate to the investigation. The
proposed discovery, which was attached to the motion, consisted of a deposition of
Cacho, 20 document requests, nine requests for admission, and eight interrogatories.
Wisner insisted the discovery was necessary to allow him to develop evidence
relevant to the issues of whether the NDPB report was false and whether defendants
knew it was false. In particular, Wisner claimed he needed discovery to show (1)
defendants conducted only a “preliminary inquiry” to determine whether an investigation
should be commenced; (2) there was no documentation of a formal investigation; and (3)
defendants knew there was no investigation and filed the NPDB report with malice.
The court denied Wisner’s discovery motion, finding Wisner failed to demonstrate
good cause for the requested discovery. We may not disturb the trial court’s ruling
denying the discovery motion absent an abuse of discretion. (1-800 Contacts, supra, 107
Cal.App.4th at p. 593.) There was no abuse of discretion here.
As the trial court explained, Wisner’s showing of good cause was based on his
interpretation of the term “investigation.” Wisner argued, as he does on appeal, that an
investigation requires a formal process initiated and conducted by the hospital’s
executive committee. However, as we have already discussed, the meaning of the term
16
“investigation” is “not controlled by how that term may be defined in a health care
entity’s bylaws or policies and procedures.” (See, e.g., Rogers, supra, 139 F.Supp.3d at
p. 142 [a reportable event is based on an “investigation” as that term is contemplated by
the statute, not as contemplated by a health care entity’s governing documents].) For
purposes of NPDB reporting, an investigation is broadly construed to run from the start
of a focused “inquiry” relating to possible incompetence or improper professional
conduct. To qualify for mandatory reporting, there is no requirement for a formal
investigation taken in accordance with the hospital’s internal bylaws or policies. (Rogers,
at p. 142.)
Here, SJMC presented evidence establishing that Wisner was the subject of a
focused “inquiry” regarding the accusations against him. Wisner’s proposed discovery,
focusing on whether there was documentation of a formal investigation within the
meaning of the bylaws, could not have changed that outcome.
In addition, the record shows that most (if not all) of the information Wisner
sought to obtain through discovery was available from other sources (to the extent it
existed at all). After Wisner challenged the accuracy of the NPDB report, the DHHS
asked SJMC to provide details and “any supporting documentation, including but not
limited to, a timeline of events, investigation reports, meeting minutes, correspondence,
an explanation/evidence of a search of historical documents, and any business records
that may be relevant to a full and fair review of this dispute.” In response, SJMC
produced copies of the accusation, the indictment, SJMC’s bylaws, and the
communications between SJMC and Wisner, and Wisner received copies of those
documents. Thus, Wisner received whatever supporting documents SJMC had, well
17
before the hearing on the anti-SLAPP motion.5 Wisner never explained why the informal
discovery he received was not sufficient or what additional evidence he expected to
uncover through discovery. (See Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th
604, 619 [no showing how discovery was likely to lead to admissible evidence relevant to
privilege issue].)
Under the circumstances, Wisner failed to establish good cause for the discovery
in the context of the issues raised in the anti-SLAPP motion. The trial court did not abuse
its discretion in denying his discovery motion.
DISPOSITION
The orders granting the special motion to strike the complaint and denying the
motion to conduct limited discovery are affirmed. Defendants shall recover their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
HULL , J.
5 Indeed, Wisner argued at the hearing that defendants’ failure to produce an
investigation report, executive committee minutes, formal investigation order, and similar
documents, supported an inference that there was no investigation.
18
Filed 11/4/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
GARY R. WISNER, C094051
Plaintiff and Appellant, (Super. Ct. No.
STK-CV-UD-2020-0003078)
v.
ORDER CERTIFYING
DIGNITY HEALTH et al., OPINION FOR PARTIAL
PUBLICATION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Joaquin County, Barbara
A. Kronlund, Judge. Affirmed.
Gary R. Wisner, in pro. per.; The Arkin Law Firm, Sharon J. Arkin; Barta Law,
and Theresa J. Barta for Plaintiff and Appellant.
Manatt, Phelps & Phillips, Barry S. Landsberg, Doreen W. Shenfeld, and Joanna
S. McCallum for Defendants and Respondents.
1
THE COURT:
The opinion in the above entitled matter filed on October 18, 2022, was not
certified for publication in the Official Reports. For good cause, it now appears that the
opinion should be published in the Official Reports, with the exception of part II, and it is
so ordered.6
BY THE COURT:
ROBIE , Acting P. J.
HULL , J.
KRAUSE , J.
6 See California Rules of Court, rules 8.1105 and 8.1110.
2